“Throughout history, it has been the inaction of those who could have acted; the indifference of those who should have known better; the silence of the voice of justice when it mattered most; that has made it possible for evil to triumph.”
Haile Selassie

Saturday, March 10, 2012

Court of Appeals Orders Prior Restraint on Speech, Stops South Bend Tribune From Publishing Story on DCS

Judge Jim Payne, Director of DCS

Everyone who has first year constitutional law knows that prior restraint of free speech is something that will only be upheld under the most extreme situations . That's why I found this story from the Indianapolis Star about the Court of Appeals stopping a story (at least from now) critical of the Department of Child Services to be an extremely surprising development:

The Indiana Court of Appeals approved an emergency request Friday from the Department of Child Services that prevents the South Bend Tribune from publishing a story based on the recording of a call made last year to the state's child abuse hotline.

On Tuesday, a St. Joseph County judge ordered DCS to release a copy of the May call to the hotline alleging 10 children were being abused in a South Bend home.

The Tribune briefly posted a story on its website based on the tape, along with audio clips from the 20-minute call. Both were removed after the appeals court ordered a stay of the local court order late Friday afternoon.

The Court of Appeals also set a hearing on the matter for Monday.

"We were very, very disappointed," said Tribune Executive Editor Tim Harmon. "The material that we received after the juvenile court judge's order is clearly something the public needs to know about. It is something we have reported about in the past and will continue to report about."

Harmon said the newspaper planned to use material from the call "very responsibly," and the story that was briefly posted did not include the caller's name or gender. It also did not use the names of the children involved.

One of those children was 10-year-old Tramelle Sturgis, who was fatally beaten about six months later. His father, Terry Sturgis, is charged with murder in the boy's death.

DCS already has released paper copies of the Sturgis family's files. Those records included information detailing allegations made in the May call to the hotline. They also reveal that a DCS worker did not make contact with the family until four days after that call.

A few weeks later, the worker ruled the allegation of abuse was unfounded.

However, the circumstances of Tramelle's killing -- he was beaten to death with a wooden club -- closely matched details of the abuse allegation in the hotline call.

...

DCS Director James Payne repeatedly has pledged that the agency would be open and transparent. But one critic of the agency, Dawn Robertson of the family-rights group HonkForKids.com, says that has not been her experience.

"I've heard Director Payne say over and over how DCS would be open and transparent," she said. "In the years since, families we have worked with have repeatedly run into hurdles just getting their own records.

"So why would you think DCS was going to allow more access to information that would help the public determine whether or not the agency's actions are correct or appropriate?"

Courts have consistently held that prior restraint of free speech, a prohibition on the publication of speech before the speech takes place, will be rarely allowed under First Amendment to the United States Constitution. Exceptions have been made in the case of war-related materials, obscenity, and statements which, in and of themselves, may provoke violence. The South Bend Tribune story that the Court of Appeals has suppressed based on an emergency order doesn't seem to come close to fitting the circumstances in which prior restraint on speech has been allowed.

That's not to say the South Bend Tribune acted properly in putting together the story (it was published briefly on-line and then removed). The remedy though would seem to be an action against the newspaper for the publication, not suppression of the story. Nonetheless, it is not certain DCS would have standing to bring the action. Confidentiality rules protect the individual who made the report and the minors involved. Confidentiality rules are not about protecting the agency, especially when the story was about DCS's mismanagement, a matter of public concern.

About Me

I have been an attorney since the Fall of 1987. I have worked in every branch of government, including a stint as a Deputy Attorney General, a clerk for a judge on the Indiana Court of Appeals, and I have worked three sessions at the Indiana State Senate.
During my time as a lawyer, I have worked not only in various government positions, but also in private practice as a trial attorney handing an assortment of mostly civil cases.
I have also been politically active and run this blog in an effort to add my voice to those calling for reform.